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Riverside Cnty. Dep't of Pub. Soc. Servs. v. J.M. (In re H.M.)

California Court of Appeals, Fourth District, Second Division
Aug 16, 2023
No. E080817 (Cal. Ct. App. Aug. 16, 2023)

Opinion

E080817

08-16-2023

In re H.M. et al., Persons Coming Under the Juvenile Court Law. v. J.M., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIJ2000526. Mona M. Nemat, Judge.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

This is an appeal taken by mother from the orders of the Riverside County Juvenile Court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26 as to her five children. We will affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise designated. References to rules are to California Rules of Court.

BACKGROUND

Respondent Riverside County Department of Public Social Services (the Department) received a referral because mother tested positive for methamphetamines upon giving birth to twins Jos. F. and Jol. F. in August 2020. The Department's investigation revealed the twins had three siblings: 10-year-old H.M (who was born in May 2010 to mother and W.S.), three-year-old J.F. (born in August 2017), and 21-month-old S.F. (born in November 2018). The siblings were living with mother and A.F. (the father of the twins, J.F., and S.F.). The home was infested with cockroaches, had a strong order of animal urine, and contained animal feces. H.M. considered A.F. her "real father" because he had taken care of her for many years. Mother and A.F. disclosed a history and current abuse of methamphetamine and marijuana.

The Department took the children into protective custody and filed a section 300 juvenile dependency petition on their behalf, which was later amended to drop an allegation that the whereabouts of H.M.'s father were unknown and to amend supporting facts with respect to the allegation the parents failed to protect the children within the meaning of subdivision (b)(1) of section 300. It placed the twins together in one foster home and the three older children together in another foster home. At the January 2021 combined hearing on jurisdiction and disposition, the juvenile court sustained the petition and adjudged the children dependents of the court. It removed the children from their parents and ordered provision of family reunification services to mother, A.F., and W.S. It found the Department had made sufficient inquiry regarding whether the children have Indian ancestry and that the Indian Child Welfare Act (ICWA) may apply to the proceedings.

The court terminated reunification efforts as to W.S. at the 12-month review hearing held in November 2021, because he had failed to participate or make progress in the court-ordered treatment plan. The juvenile court granted his counsel's request to be relieved based on counsel's representations that father had not appeared "in quite some time," he was not communicating with counsel, and he had "his own set of beliefs about this court, whether or not it applies to him." In addition, the court found the Department had made sufficient inquiry and there was no new information to indicate that ICWA applied, and held ICWA does not apply as to any of the children.

By the time of the section 366.22 review hearing in April 2022, the parents had not reunified with the children and the court found there was no substantial probability that they would be returned if it provided an additional six months of services. The court ordered termination of reunification efforts and set a section 366.26 hearing for selection of a permanent plan.

Mother noticed her intent to file a petition for extraordinary writ, but later withdrew the petition and we ordered the matter dismissed.

In its report prepared for the February 2023 permanent plan selection hearing, the Department stated the twins continued to live in the same foster home where they had been placed when taken into protective custody, and the foster parents wished to adopt them.

At the hearing, mother objected to termination on the grounds the children would be harmed by severing the strong bond she shared with them. The court found none of the exceptions to termination of parental rights set forth in subdivision (c)(1)(A) or (B) of section 366.26 applied and terminated the parental rights of mother and the fathers as to each of the children.

Mother timely noticed this appeal from the orders terminating her parental rights.

DISCUSSION

Mother raises three issues in her appeal: (i) the juvenile court filed to adequately address postadoption sibling visitation; (ii) the juvenile court erred when it terminated mother's parental rights because she established that it was in her children's best interests to preserve their relationship with her; and (iii) the Department failed to comply with the duties imposed upon it by the Indian Child Welfare Act (ICWA) and California's ICWA implementing provisions. (25 U.S.C. § 1901, et seq.; Welf. &Inst. Code, §§ 224.2, 224.3; rule 5.481)

1. Postadoption sibling visits

When the children were removed from parental custody, the infant twins were placed in one home and the three older children were placed in another. That arrangement continued throughout the proceedings and, when parental rights were terminated, the recommended permanent plan was for the children to be adopted by their respective caretakers. On appeal, mother argues the juvenile court erred because it did not adequately address postadoption visits between the two groups of children. She requests remand with instructions to the juvenile court to appoint independent counsel for the three older children and separate counsel for the twins to address whether sibling visits should be part of the section 366.26 orders.

Mother does not have standing to raise the issue of the siblings' postadoption visits. To have standing to appeal, an appellant must be aggrieved by the lower court's decision; that is, the appellant's rights or interests must be injuriously affected by the court's decision in an immediate and substantial way. (Code Civ. Proc., § 902; In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)

It is well-settled that after parental rights have been terminated, parents do not have standing to raise issues concerning postadoption visits between the dependent children because juvenile court's decisions on the subject do not injuriously affect the parent's interests in an immediate and substantial manner. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; In re K.C., supra, 52 Cal.4th at p. 238.)

Mother posits she should have standing to raise postadoption sibling visitation issues because parents are allowed to raise ICWA notice violations on appeal even if they are not aggrieved by them. She theorizes that standing is conferred as to those issues because they would never come before the reviewing court if parents did not raise them and claims the same is true with respect to sibling visitation issues. We disagree. Mother overlooks the fact that minors in juvenile dependency proceedings, unlike Indian tribes, are with rare exception, represented by counsel charged with protecting their interests throughout the proceedings. (§§ 316 [minor entitled to be represented by counsel at every stage of dependency proceedings], 317, subds. (c), (d), (e) [appointment and duties of minor's counsel]; rule 5.660(b) [if child unrepresented, juvenile court required to appoint counsel unless it finds based upon specific criteria that the child would not benefit from counsel].)

We note that even if mother did have standing to raise issues concerning postadoption visits between the children, her arguments would be unavailing. She claims the court should have made "exit orders" establishing custody and visitation in a manner serving the best interests of the children, and that "there was a strong indication that frequent sibling visitation was in all of the children's best interest." Mother misapprehends the timing and purpose of exit orders. As explained in one of the cases she cites, the term "exit order" refers to a section 362.4 custody and visitation order the juvenile court is authorized (but not required) to issue when it terminates dependency jurisdiction over a child who is not yet 18 years of age, an order which is required to be filed in family court. (§ 362.4; In re John W. (1996) 41 Cal.App.4th 961, 970.) An exit order is clearly not appropriate where, as here, the court has retained jurisdiction over the children pending their adoption.

Mother also argues the juvenile court failed to comply with the "mandatory steps" set forth in subdivision (e) of section 16002. That provision, which sets forth the tasks the Department is required to undertake in order to facilitate ongoing sibling contact, applies after parental rights are terminated and the court orders the dependent child to be placed for adoption. (§ 16002, subd. (e); In re Cliffton B., supra, 81 Cal.App.4th at pp. 426-427.)

2. The parent-child exception to termination of parental rights

Mother argues the juvenile court erred when it terminated her parental rights to the children because the evidence established the existence of such a strong bond between her and the children that it would harm the children if it were severed. We are not persuaded.

In cases like the present one in which family reunification efforts have failed and the court has found the children are likely to be adopted, the juvenile court is required to terminate parental rights unless the children come within the exceptions to termination set forth in subdivision (c) of section 366.26. (In re Caden C. (2021) 11 Cal.5th 614, 630631 (Caden C.).)

One of those exceptions permits the selection of a permanent plan other than adoption if the parent has established by a preponderance of evidence three elements: (i) the parent maintained regular visitation and contact with the child; (ii) the child has, and would benefit from continuing a substantial, positive, emotional attachment to the parent; and (iii) termination of that relationship would be detrimental to the child even when balanced against the benefits of an adoptive home. (§ 366.26, subd. (c)(1)(B)(i); Caden C., supra, 11 Cal.5th at pp. 636-637.)

Whether the child has a relationship with the parent sufficient to come within the exception is determined by taking into consideration the child's age, the portion of the child's life spent in the parent's custody, the effect on the child of interactions with the parent, and the child's particular needs. (Caden C., supra, 11 Cal.5th at p. 632.)

The first two elements are generally reviewed for substantial evidence and the third is reviewed for abuse of discretion. (Caden C., supra, 11 Cal.5th at pp. 639-640.) If, however, the issue is one of a failure of proof, then the appropriate standard of review is not whether substantial evidence supports the juvenile court's finding, but rather whether as a matter of law the evidence compels a finding in favor of the parent. (In re Luis H. (2017) 14 Cal.App.5th 1223, 1226; see In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds as stated in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)

In this case, the parties appear to agree that mother maintained regular visits and contacts with the children. From the time of detention in September 2020, until family reunification services were terminated in April 2022, visits were scheduled twice a week for two hours. Mother consistently attended those visits except for (i) missing seven consecutive visits during a period in July and August 2021, and (ii) missing 13 out of 16 scheduled visits between October 2021, and January 2022, in part because of holidays and COVID, but also because mother did not show up or call to cancel on at least two occasions. When the court ordered cessation of reunification efforts in April 2022, it reduced visits to one hour twice a month and, by the time of the permanent plan selection hearing in February 2023, mother was visiting the children once a month. Visits remained supervised throughout the proceedings.

We find mother's visits satisfy the exception's visits and contacts requirement. What is lacking, however, is evidence that compels a finding that any of the children have a substantial, positive, emotional attachment to mother such that the benefit of continuing that relationship-and the detriment of severing it-would outweigh the benefit to the child of adoption.

At the time the court terminated parental rights, the twins were two and one-half years old and had never lived with mother. J.F., who was three when removed from mother's care, was five and one-half years old by the time of the permanent plan selection hearing. And, S.F., who was 21 months old when removed from mother, was four when mother's rights were terminated. J.F. and S.F. expressed happiness in their adoptive home and their desire to remain there.

The eldest, H.M., was 10 years old when removed from mother's custody and was three months shy of her 13th birthday when the permanent plan hearing took place. Although she had spent the majority of her life in mother's care and seemed slightly conflicted about not seeing her biological parents again, she appeared to be very attached to her prospective adoptive parents for whom she expressed love, and described herself as feeling wonderful and happy. At the hearing, her counsel represented that H.M. "specifically wants to be adopted."

There is no evidence that any of the children had a strong emotional attachment to mother. There is no mention in the record, for example, of them asking for mother or showing any difficulty separating from her at the end of visits. In fact, the social worker that supervised visits reported in early December 2021, and again in February 2022, that the children were happy at the beginning and at the end of visits.

Mother argues she displayed a parental relationship. In support of that statement, she points to a report in November 2020, just a month after the children had been taken into custody stating the parents visited twice a week, that they arrived on time and were affectionate toward the children, and that H.M. cried during visits because she missed her parents. Naturally, a report of behaviors so close to the time of removal has little bearing on the state of the children's relationship with mother at the time of selection of permanent plans for them over two years later. Mother also points to the statement in the Department's report prepared for the October 2021, 12-month status review that H.M. had mentioned she and mother liked to do activities together such as dyeing their hair (presumably an activity enjoyed when they lived together).

In short, mother's visits with the children and occasional reports that they were happy to see her are not sufficient to establish a parent-child relationship for the purposes of the section 366.26, subdivision (c)(1)(B)(i) exception and do not outweigh the benefits of security and belonging afforded by an adoptive home. (In re Jason J. (2009) 175 Cal.App.4th 922, 938.)

In view of the foregoing, we do not find the record compels a finding that mother met her burden of establishing any of her children had a substantial, positive emotional attachment to her that would be beneficial to them to continue. Accordingly, the juvenile court did not abuse its discretion in finding the benefit of adoption outweighed any potential detriment to them of severing their relationship with her.

3. Compliance with ICWA inquiry and notice provisions

When the dependency proceedings were initiated in September 2020, mother and A.F., the father of the four youngest children, advised the Department and the juvenile court of their Indian ancestry. H.M.'s father, W.S., also reported possible Indian ancestry. On appeal, mother argues that conditional reversal of the orders terminating parental rights is called for because the Department's ICWA inquiries and notices were insufficient.

ICWA was enacted by Congress to protect the best interests of Indian children, and to promote the stability and security of Indian tribes and families in child custody proceedings, including juvenile dependency cases. (25 U.S.C. §§ 1902, 1903(1); 25 C.F.R. § 23.106.) To that end, California law imposes an affirmative and continuing duty on the court and child services agencies such as the Department to inquire whether a child for whom a Welfare and Institutions Code section 300 juvenile dependency petition has or may be filed is or may be an Indian child. (Welf. &Inst. Code, § 224.2, subd. (a).) An Indian child is defined as an unmarried person under the age of 18 and who is either (i) a member of an Indian tribe, or (ii) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) To come within ICWA, the Indian tribe must be eligible to receive services provided by the Secretary of the Interior because of their status as Indians. (25 U.S.C. § 1903(8), (11).)

As relevant here, the Department's duty of inquiry begins at the time of its initial contact with a child for whom a section 300 petition may be filed. (§ 224.2, subd. (a).) The juvenile court's duty attaches at the first appearance of each party. (§ 224.2, subd. (c).) If the Department or the court has reason to believe the child is an Indian child but does not have enough information to establish a reason to know the child's Indian status, then they are required to make further inquiry. (§ 224.2, subd. (e)(2).) A reason to believe is established if the court or the Department has information suggesting that either the parent or the child is, or may be, a member of a tribe (or may be eligible for membership). (§ 224.2, subd. (e)(1); rule 5.481(a)(4).)

If there is a reason to believe, then the required further inquiry includes: (i) interviewing the parents and extended family members; (ii) contacting the Bureau of Indian Affairs (BIA) and the State Department of Social Services; and (iii) contacting tribes the child may be affiliated with and other persons that might reasonably have information regarding the child's membership in a tribe (or eligibility to become a member) in a tribe. (§ 224.2, subd. (e)(2); In re D.S. (2020) 46 Cal.App.5th 1041, 10481049 (D.S.).) Contact with the tribe may be made by telephone, facsimile transmission, or electronic mail to the tribe's designated agent for receipt of ICWA notices. (§ 224.2, subd. (e)(2)(C).)

What persons qualify as an extended family members is defined by law or custom of the tribe or, in the absence of such law or custom, shall be a person who has reached the age of 18 and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent. (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).)

If the further inquiry establishes the child comes within ICWA or gives the court or the Department reason to know the proceedings involve an Indian child, then notice of hearings held in the dependency proceedings must be given to the BIA and to all tribes the child is or may be a member or citizen of (or is eligible to become a member or citizen). (§§ 224.2, subds. (e)(2), (f); 224.3.) The notice is required to be given using Judicial Council Forms, form ICWA-030 (ICWA-030). (Rule 5.481(c)(1).)

Rule 5.481(a)(5) requires the Department to include in its filings on an ongoing basis a detailed description of all inquiries undertaken, and all information it received pertaining to the child's Indian status.

The juvenile court's ICWA findings are generally reviewed for substantial evidence; that is, the reviewing court must determine if the finding is supported by reasonable, credible evidence of solid value. (In re Josiah T. (2021) 71 Cal.App.5th388, 401 (Josiah T.).) The affirmative and ongoing duty of the Department and the juvenile court to make ICWA inquiries, and the Department's specific obligation to ask extended family members about the child's Indian status, are imposed by state, not federal, law. (§ 224.2, subds. (a), (b); rule 5.531.) Accordingly, reversal is permitted only if we find the error was prejudicial. (Cal. Const., art. VI, § 13; In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.).)

We are aware that our courts are divided on the question of how to review ICWA errors and that our Supreme Court is poised to resolve the issue. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779-782, review granted, Sept. 21, 2022, S275578.)

ICWA compliance as to mother's claim of Indian ancestry

When the Department took the children into custody, mother advised the Department and the juvenile court that she was registered with the Pechanga Band of Luiseno Indians, but she was unable to provide a registration number. Her identification gave the Department reason to believe mother and the children might be members of the Pechanga Band of Indians or may be eligible for membership, which triggered the duty of further inquiry, including obtaining readily available information from extended family members that was likely to bear meaningfully upon whether the child in an Indian child. (§ 224.2, subd. (e); rule 5.481(a)(4); Josiah T., supra, 71 Cal.App.5th at p. 404 [representation by grandparent that she had Cherokee ancestry is reason to believe child may be an Indian child, requiring the child services agency to make further inquiries]; Benjamin M., supra, 70 Cal.App.5th at p. 744 [reviewing court must reverse when the record demonstrates that the Department failed to gather readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child].)

In this case, there is sufficient evidence that the Department and the court fulfilled their duties of further inquiry with respect to mother's claim of Indian ancestry. Within a couple of days of mother's disclosure, the Department contacted a Pechanga tribe social worker who stated the family was not registered with that tribe. Thereafter, at the September 2020 detention hearing, mother submitted a Judicial Council Forms, form ICWA-020 (ICWA-020), declaring she is or may be a member of, or eligible or membership in, the Luiseno (Pechanga) Band of Mission Indians located in Temecula through a relative first identified as the children's great-grandmother, Camela M., but was later discovered to be their great-great-grandmother. The court found ICWA may apply and ordered the Department to make further inquiry to determine whether notices were necessary.

In the course of conducting further investigation, the Department learned that mother and the maternal grandmother had "BIA numbers" and had been trying to enroll with the Pechanga Band since mother was in high school. Although formal notice was not required to be provided to the tribes because the Department had not established a reason to know any of the children came within ICWA (§ 224.2, subds. (e)(2), (f); 224.3), the Department sent Judicial Council Forms, form ICWA-030 notices to the Pechanga Band's chairman on October 2, 2020. On October 27, 2020, the tribal director for Child and Family Services for the Pechanga Band telephoned the Department to say she had determined by the names and birthdates of the parents and children that they were not affiliated with the tribe.

The following day, on October 28, 2020, the Department sent supplemental notices after mother provided updates and corrections to the information previously provided. The new notices included additional names the maternal grandmother had been known by, her place of birth, and her number on the "1972 Judgment Fund Roll of California," as well as the city of the great-great-grandmother's birth. It seems the Pechanga Band did not respond to that notice.

In July 2021, mother reported that she was registered with the Pechanga Band and she was only able to register H.M. When the Department asked her to provide the registration card, she indicated she needed to look for it. On August 9, 2021, mother produced a letter from the BIA certifying her degree of Indian blood as "1/16 Luiseno (Pechanga)." The letter cautions that the statement of blood quantum does not denote tribal enrollment. That day, the Department again contacted the Pechanga Band and was again informed that the mother and children were not enrolled members.

Shortly before the August 18, 2021 section 366.21, subdivision (e) six-month review hearing, the Department called the Pechanga Tribe, who reiterated that mother and the children were not registered members of the tribe and added that if mother is saying she is a member, then she needed to produce her membership card. At the hearing, the juvenile court found the children did not come within ICWA. Thereafter, the Department reported it had not discovered any new information to indicate ICWA applied. By the time of the August 2022 report prepared in anticipation of the section 366.26 permanent plan selection hearing, the Department had not discovered any new ICWA information. In its February 2023 report, the Department noted the court's August 2021 finding that ICWA did not apply to the children and that when the Department asked mother about her Indian ancestry in December 2022, she responded she was not of Indian descent.

In her brief, mother remarks in the same paragraph that (i) the Pechanga Band stated the family was not affiliated with it "based on the parents' and children's dates of birth," and (ii) the Department reported it received that response the day before the ICWA notices were sent. She states, "[i[t appears that the Department reported the dates incorrectly." It is unclear, and mother does not specify, whether the mother's reference to error in reporting refer to the dates of birth provided to the Pechanga Band, the date of the sending of notice to that tribe, or the date of receipt of its response.

If mother's reference to incorrect dates refers to the timing of notice to the Pechanga Band and its response, we do not see an issue. The Department sent two ICWA-030 notices to the Pechanga Band, the first on October 2, 2020, and the second (which contained corrections and additional information) on October 28, 2020.

Nor do we find a problem with the birthdates provided to the tribe. Although we are not required to search a record in an effort to discover a point purportedly made (In re S.C. (2006) 138 Cal.App.4th 396, 406-407), we did so here because Indian tribes have an interest in ascertaining whether a child in a juvenile dependency action is an Indian child despite any defects in a parent's brief (D.S., supra, 46 Cal.App.5th at p. 1051, fn. 11). We checked the children's birth dates reported in the ICWA-030 notices against those set forth in the initial petition and the sustained amended petition, and found they matched. We also found that mother's date of birth reported in the ICWA-030 notices was the same as set forth in the BIA's certificate stating her degree of Indian blood was 1/16 Luiseno (Pechanga).

ICWA compliance as to A.F.'s claim of Indian ancestry

In the course of the Department's initial contact with the family, A.F. reported having Indian ancestry. When the Department contacted the paternal aunt, uncle, and grandmother, it learned the family had Native American ancestry on the paternal grandfather's side, but no one was registered with a tribe and they could not provide further information. At the September 2020 detention hearing, A.F. wrote "Los Islada" on his ICWA-020 form filed with the court.

By October 1, 2020, the Department had been told the paternal great-great grandfather, J.P.F. was 100 percent Indian and had been a member of the New Mexico Band of Islada Indians. Upon discovering the tribe named by the family does not exist, the Department researched tribes in New Mexico and found the Pueblo of Isleta Tribe, which mother confirmed as the correct tribe.

Contrary to mother's claim on appeal, the Department did send the ICWA-030 notices to the Pueblo of Isleta as evidenced by the certificates of service and mailing receipts. The tribe's ICWA Coordinator provided a letter from its Census/Tribal enrollment director, which explained the children are not members and are not eligible for membership because they do not meet the one-quarter Indian blood standard required for membership.

Mother complains the Department did not send an ICWA-030 notice to the Los Islada Indians of New Mexico, and notes the Department's jurisdiction/disposition report states notice was sent to that tribe. The reference to the Los Islada tribe in the report is clearly a mistake because, as noted ante, that tribe does not exist and the record establishes the notices were sent instead to the Pueblo of Isleta.

Mother finds "questionable" the statement in the Department's report for the February 2023 permanent plan selection hearing that, in December 2022, mother and A.F. "reported they are not of Indian Descent." Because mother does not explain, and we cannot fathom what prejudice resulted from the statement, we need not speculate whether the statement was simply a mistake or whether the two parents simply acknowledged to the social worker that ICWA was not applicable to the proceedings.

Mother also suggests the duty of ICWA inquiry was necessarily not satisfied because the Department "did not make meaningful efforts to locate and interview all of Mother's or Father's known extended family members" and, therefore, it was "impossible to identify any potential tribes that the children may have descended from." We recognize the Department was required to interview extended family members because possible ancestral tribes had been identified and to document those contacts in its report. (§ 224.2, subd. (e)(2).) And, we agree the Department's efforts should have been documented in greater detail. We do not find, however, that any prejudice resulted from its failure to do so because the Department had made reasonable inquiries resulting in sufficient information to identify potential tribes and to enable the tribes to make ICWA determinations. (See D.S., supra, 46 Cal.5th at pp. 1053-1054.)

ICWA compliance as to W.S's claim of Indian ancestry

The only errors mother claims with respect to ICWA compliance as to W.S. are (i) the ICWA-030 notices stated father's address was unknown even though the Department had that information, and (ii) the Department's six-month review report did not address W.S.'s assertion of Indian ancestry. She does not argue that any prejudice resulted from either shortcoming.

As noted ante, the Department is required to send an ICWA-030 notice to the BIA and all tribes the child is or may be a member or citizen of (or is eligible to become a member or citizen) only if there is reason to know the proceedings involve an Indian child. (§§ 224.2, subds. (e)(2), (f); 224.3; rule 5.481(c)(1).) Inquiries into the children's Indian ancestry did not give rise to a reason to know any of them are Indian children and, accordingly, any defects in the notices are harmless.

Also harmless is the Department's failure to directly address W.S.'s claim of Indian ancestry in its six-month review report. Mother is correct that the Department should have, but did not, comply with the rule 5.481(a)(5) requirement that it provide a detailed description of all ICWA inquiries undertaken with respect to W.S. The report does make clear, however, that W.S. did not answer the Department's questions regarding his history, including basic questions such as identifying his employer, the location of his employment, or his hours of employment, even though he wanted the Department to schedule reunification services during the hours he was not working.

DISPOSITION

The orders terminating parental rights are affirmed.

We concur: McKINSTER J. CODRINGTON J.


Summaries of

Riverside Cnty. Dep't of Pub. Soc. Servs. v. J.M. (In re H.M.)

California Court of Appeals, Fourth District, Second Division
Aug 16, 2023
No. E080817 (Cal. Ct. App. Aug. 16, 2023)
Case details for

Riverside Cnty. Dep't of Pub. Soc. Servs. v. J.M. (In re H.M.)

Case Details

Full title:In re H.M. et al., Persons Coming Under the Juvenile Court Law. v. J.M.…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Aug 16, 2023

Citations

No. E080817 (Cal. Ct. App. Aug. 16, 2023)